Filed 10/14/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

WENDY JOY WILLIAMS,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
THE PEOPLE et al.,
Real Parties in Interest. / G050280
(Super. Ct. No. P-00164)
O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Craig E. Robison, Judge, and Gregg L. Prickett, Supervising Judge. Petition granted.

Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Miles Jessup, Deputy Public Defender, for Petitioner.

Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest the People of the State of California.

No appearance for Real Party in Interest the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations.

* * *

In Morrissey v. Brewer (1972) 408 U.S. 472 (Morrissey), the United States Supreme Court held that a parolee is entitled to certain procedural due process protections before parole may be revoked. (Id. at pp. 482-484.) Among these is the right to a prompt evidentiary hearing on whether probable cause exists to believe the parolee violated a condition of parole. (Id. at pp.484,487.)

In 2011, “California began enacting legislation, commonly known as ‘Realignment,’ that significantly altered the state’s criminal justice system.” (Valdivia v. Brown (E.D.Cal. 2013) 956 F.Supp.2d 1125, 1126 (Valdivia III).) This legislation established, inter alia, a uniform process for revocation of probation, parole, and postrelease supervision of felons.[1] (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) §2(a).) The Legislature intended this uniform procedure to comply with Morrissey’s due process requirements. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) §2(b).) Under this uniform procedure, the court has jurisdiction over petitions for revocation of supervision (including parole). (§ 1203.2, subds. (a), (b).)[2]

Petitioner Wendy Williams contends that, in the wake of realignment, the State of California and the Orange County Superior Court have systematically denied her and other parolees the procedural protections to which they are entitled in revocation proceedings. Williams petitions for a writ of mandate (1) ordering the Superior Court to arrange for her immediate release from custody and to dismiss the petition for revocation of her parole, and (2) ordering the Superior Court and real parties in interest (the People of the State of California and the Division of Adult Parole Operations (Parole) of the DCR) to provide her with reasonable due process prior to any further incarceration, including a Morrissey-compliant probable cause hearing within 15 days of arrest.

We grant Williams’s petition in part.[3] We hold that, in parole revocation proceedings, a parolee is entitled to arraignment within 10 days of an arrest for a parole violation, a probable cause hearing within 15 days of the arrest, and a final hearing within 45 days of the arrest.

FACTS

Williams’s Parole Violation and Revocation Proceedings

On May 20, 2014,[4] Williams was arrested for absconding from parole supervision. She was placed in custody at the county jail on a parole hold.

On that date, a parole agent signed a probable cause determination form identifying Williams’s parole violation as absconding from parole supervision, and describing the circumstances of the charge as follows. After Williams failed to report to her supervising agent on May 6, the agent tried to locate her the next day at the Motel 6 in Orange, where she had claimed to reside. The agent spoke with Kathy, the motel’s front desk clerk, who said Williams was not a guest at the motel. On May 13, the court issued a warrant for Williams’s arrest and her parole was suspended.[5] On May 20, Williams was arrested by the police for being a parolee at large.

On the probable cause determination form, a Parole unit supervisor checked a box to retain Williams’s parole hold and ordered that the matter be investigated and a report submitted by May 28.

On May 28 — eight days after Williams’s arrest — in the parole violation report, the parole agent and the unit supervisor recommended that Williams be returned to custody for 135 days. The report reflected that an “evidence based tool” called the “parole violation decision making instrument [PVDMI]” recommended that Williams be “continue[d] on parole with remedial sanctions,” as opposed to being referred for revocation. But Parole reported it had decided to petition for revocation due to Williams’s “failure to comply with his or her conditions of parole or involvement in criminal behavior,” and to recommend Williams be returned to custody for 135 days. The report identified Williams’s risk level as “high-drug.”

The report described the circumstances of the charge similarly to the May 20 probable cause determination form, but also included the following additional details. On May 20, Tustin police detective Breeze was at the Bel Air Motel in response to a suspicious circumstance call for service. Breeze noticed a female standing in the doorway of a motel room. Breeze approached Williams, who immediately went into her room and said she did not want to talk to Breeze. Breeze contacted Kim, the motel manager, who said the occupant of the room was Wendy Williams. A records check revealed Williams was a parolee at large. Williams was arrested and taken to the police station for booking.

The “Parolee Statement” section of the May 28 report stated that, while Williams was being booked at the police station, she told the parole agent that she was sick and unable to report, and promised to report immediately if the parole hold were lifted.

In the “Evaluation” section of the May 28 report, Parole explained the reasons for its recommendation to petition for revocation and a return to custody: “Williams is a habitual absconder with no real desire or intentions to comply with her conditions of parole. Williams travels from Riverside County to Orange County leaving a trail of criminal arrests in both counties. Williams primarily lives out of motels and occasionally the streets. She has been unemployed the vast majority of her adult life. Although she has extremely supportive parents who are willing to assist her, she chooses to live out in the streets bouncing from motel to motel. Remedial sanctions were considered but Williams refused any type of treatment or structured program. This agent recommends that Williams be returned to custody at this time.”

On May 29 — nine days after Williams was arrested and placed in jail —Parole petitioned the court for revocation of her parole.[6] The petition stated that on May 20, Parole had established probable cause for the alleged parole violation. Williams’s arraignment was scheduled for June 5, — 16 days after Williams’s arrest.

On June 5, Williams moved to dismiss the revocation petition for lack of due process and pursuant to section 3044 (which gives a parolee the right to a probable cause hearing within 15 days of arrest). She also sought release from custody pending resolution of the due process and section 3044 issues.

It is undisputed that the court denied Williams’s motion. According to Williams, she then sought to present evidence on probable cause, but the court denied her request “and purported to find probable cause based solely on the ‘information and belief’ Petition for Revocation.” It is undisputed that Williams’s revocation hearing “was scheduled — per Court policy — three Thursdays later on June 26,” — 37 days after her arrest.

Parole Violation and Revocation Procedures in Orange County

According to Williams, her experience is typical in Orange County, where a 2013 survey conducted by the Orange County Public Defender staff indicated that parolees averaged just over 16 days in custody prior to their first court appearance. Thus, a majority of parolees were denied a probable cause hearing (or even arraignment and an opportunity to request release on bail and appointment of counsel) within 15 days of their arrest.

Williams describes the Orange County Superior Court’s calendaring policy for parole revocation proceedings as follows.[7] The court assigns parole revocation matters only to department CJ1 (a courtroom located inside the Santa Ana jail), “with some matters sent out to other courtrooms for some hearings.” The court sets such matters only on Thursdays, refusing access to department CJ1’s available calendar slots on Monday, Tuesday, Wednesday and Friday. The deadline for filing parole revocation petitions to be heard on any particular Thursday is 4:00 p.m. on the immediately preceding Monday. Thus, a revocation petition filed after the Monday deadline “will not be calendared the same week, but rather will be placed on calendar at least 10 days later on a non-holiday Thursday.” This filing deadline only applies to parole revocation petitions. At the arraignment hearing, the court has refused to allow defense witnesses to testify. Such testimony is allowed only at the final revocation hearing, which is scheduled for three weeks after arraignment.

Parole has chosen, as a policy, not to exercise its statutory authority to consider flash incarceration as an intermediate sanction in lieu of parole revocation. (Couzens & Bigelow, Felony Sentencing After Realignment (Mar. 4, 2014), p. 95; at <www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) The use of flash incarceration, i.e., detention in jail for up to 10 days, is statutorily encouraged. (§ 3000.08, subds. (e), (f).)

DISCUSSION

Williams contends these policies “systematically ensure that in Orange County, no parolee will ever have an audience before a magistrate within 48 hours of” arrest and “virtually no parolee in Orange County will have a time compliant (Pen. Code, § 3044, subd. (a)) or Morrissey compliant probable cause hearing, much less a meaningful opportunity to participate in such [a] hearing.”

The People counter that, in post-realignment California, Williams is not entitled to arraignment within 48 hours of arrest nor is she entitled to a probable cause hearing before a court at any time.

I

Relevant Legal Principles and Background

A. Morrissey

In Morrissey, supra, 408 U.S. 471, two petitioners alleged they were denied due process when their paroles were revoked without a hearing based on the parole board’s review of the parole officer’s written reports. (Id. at pp.472-474). The United States Supreme Court stated that a parolee is not entitled to the full panoply of due process rights, because parole revocation is not part of a criminal prosecution and because revocation deprives a parolee of conditional liberty, not absolute liberty. (Id. at p. 480.) Nevertheless, Morrissey held that a parolee who has been detained for a parole violation is entitled to an informal probable cause hearing and a final revocation hearing. (Id. at pp.485, 487.)

The purpose of the probable cause hearing is “to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” (Morrissey, supra, 408 U.S. at p.485.) This “minimal inquiry [must] be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” (Ibid., italics added.) The determination must be made by “someone not directly involved in the case” (ibid.), who need not be a judicial officer (id. at p. 486). The parolee must be notified of the hearing and of the alleged parole violations. (Id. at pp. 486-487.) “At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or” witnesses. (Id. at p.487.) Generally, the parolee may question any “person who has given adverse information on which parole revocation is to be based....” (Ibid.)[8] The hearing officer must prepare “a summary...of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee’s position.” (Ibid.) The “‘decision maker should state the reasons for his determination and indicate the evidence he relied on . . . ,’” but need not make “‘formal findings of fact and conclusions of law.’” (Ibid.)

A final revocation hearing (if desired by the parolee) must take place within a reasonable time after the parolee is taken into custody. (Morrissey, supra, 408 U.S. at pp. 487-488.) A lapse of two months “would not appear to be unreasonable.” (Id. at p.488.) The parolee is entitled to written notice of the allegations; disclosure of adverse evidence; an opportunity to be heard in person, to present witnesses and documentary evidence, and generally to confront and cross-examine adverse witnesses; a “‘neutral and detached’ hearing body”; and “a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” (Id. at p.489.)

The revocation decision involves two questions: Did the parolee actually violate a parole condition? (Morrissey, supra, 408 U.S. at pp.479-480.) And, if so, “should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?” (Id. at p. 480.) The second question is discretionary and entails a prediction of whether the individual is able “to live in society without committing antisocial acts.” (Id. at p.480; see id. at p. 484.)

Morrissey emphasized that it sought not to “create an inflexible structure for parole revocation procedures” (Morrissey, supra, 408 U.S. at p. 490), but rather to enunciate the “minimum requirements of due process” (id. at p. 489). It is well established “that due process is flexible and calls for such procedural protections as the particular situation demands.” (Id. at p.481.)